Constitutional reform: a summary of key amendments

Serap Yazıcı has a very useful article in the most recent issue of Insight Turkey, outlining the constitutional amendments that are currently with the Constitutional Court for consideration and that are set to be voted on in a referendum on 12 September.

The most controversial of the proposed amendments relate to changes in the higher echelons of Turkey’s judiciary. These are seen by critics as a dangerous land-grab by the AK Party government.

Below, you’ll find a brief summary of Yazıcı’s outline of the government’s proposals in this area. I’ve drawn this up partly to create an aide-mémoire for myself and partly to make a relatively easy-to-follow list of the changes available. It’s surprising how much comment about the constitutional reform package (in English anyway) omits a basic explanation of the changes that have been proposed.

I’ll leave any kind of detailed consideration of the reforms’ rights and wrongs for another day. But I will say this: if someone had asked me to devise a set of constitutional amendments that would dangerously undermine the principles of secularism and/or separation of powers, I really am not sure that this is what I would have come up with.

The Constitutional Court: term of office

Currently, the term of office of members of the Constitutional Court runs to the age of 65, meaning a maximum term of 25 years (there’s a minimum-age requirement of 40). Under the government’s proposals, this would be replaced with a 12-year maximum term.

Importantly, however, this change would only apply to new members of the Court. Existing members would continue to retire according to the old rules. As Yazıcı notes, “this means that the composition of the Constitutional Court would only change gradually in the long term”.

The Constitutional Court: composition

The current position

At present, the Constitutional Court has 11 regular members and four substitute members.

All but four of these are appointed by the Turkish president from candidates nominated by:

the Court of Cassation (2 regular, 2 substitute)

the Council of State (2 regular, 1 substitute)

the Military Court of Cassation (1 regular)

the Supreme Military Administrative Court (1 regular)

the Court of Accounts (1 regular)

the Council of Higher Education (1 regular)

The remaining four members (3 regular, 1 substitute) are appointed directly by the Turkish president—ie, at his discretion—from among:

senior administrative officers

practising lawyers

The proposed changes

Under the government’s proposals, the membership of the Constitutional Court would increase to 17.

Three of these 17 members would be elected in the Turkish parliament from candidates nominated by:

the Court of Accounts (2 members)

the presidents of the bar associations (1 member)

Ten members would be appointed by the Turkish president from candidates nominated by:

the Court of Cassation (3 members)

the Council of State (2 members)

the Military Court of Cassation (1 member)

the Supreme Military Administrative Court (1 member)

the Council of Higher Education (3 members)

The remaining four members would be appointed directly by the Turkish president—ie, at his discretion—from among:

senior administrative officers

lawyers

judges and public prosecutors of the first degree

reporting judges of the Constitutional Court

The Supreme Council of Judges and Public Prosecutors (HSYK)

The current position

At present, the HSYK is composed of the following:

the minister of justice

the undersecretary of the minister of justice

five regular and five substitute members appointed by the Turkish president from candidates nominated by the Court of Cassation and the Council of State

(At this point, Yazıcı writes that “the composition of the [HSYK] and the method of election of its members are radically different from their counterparts in Western democracies where such bodies have a mixed composition of judges and non-judges”.)

The proposed changes

If the government’s reform package were approved the HSYK would be expanded to 21 members and ten substitute members.

Two of these would be the minister of justice (who would chair the body) and the undersecretary of the minister of justice (who would be an ex-officio member).

Fifteen of the regular members and the ten substitute members would be elected by the following:

the Court of Cassation

the Council of State

the Justice Academy

regular and administrative judges

public prosecutors of the first degree

The remaining four members would be chosen directly by the Turkish president from:

senior administrators

practising lawyers

university professors in the fields of law, economics and political science

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In most instances the president chooses from a small shortlist selected by the bodies in question, so the real power lies with them. Under the proposed changes, the president still has the same number of discretionary picks to the Constitutional Court, but from a wider pool. And of course a few would be chosen in Parliament (again, from a small shortlist). The president does get new discretionary picks for the HSYK, but the current setup of that body is hardly ideal and the aggregate effect of the changes is to widen its composition significantly.

Neither the old nor the new system can remotely be described as ideal. And there is clearly a turf war going on between various constituencies over the composition of the judiciary. But I don’t think that the proposals can fairly be described in the totalitarian terms that some people are resorting to.

One striking thing is that the opposition seems to have allowed itself to go completely onto the back foot in relation to all this. The fear and uproar over the involvement of Parliament in the composition of the Constitutional Court seems to reflect an assumption that secularist parties are never going to wrest control of the Parliament back from AKP. At a time when CHP have been at similar levels of support to AKP, and with MHP presumably seeing a bounce in recent times, that seems a particularly defeatist way of looking at things.